THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO. 30 OF 2011
(ARISISNG FROM HCCS NO. 452 OF 2010
UGANDA TELECOM LTD::::::::::::::::::::::::::APPLICANT
AIRTEL UGANDA LTD:::::::::::::::::::::::::::::::::::::RESPONDENT
BEFORE : HON. LADY JUSTICE HELLEN OBURA
This ruling is in respect of a preliminary objection raised by Mr. Mathias Nalyanya, counsel for the respondent when this application came before me for hearing. Counsel contended that the application for leave to appear and defend was brought out of time. He submitted that Civil Suit. No. 451 was filed under Order 36 rules 2 and 3 of the Civil Procedure Rules (CPR) on the 17th December 2010 and summons was served on the applicant on the 20th December 2010. That the time stated in the summons in summary suit for filing application for leave to appear and defend was ten days. He submitted that the ten days expired on the 30th December 2010 and this application was filed on the 17th January 2011 as stated in paragraphs 2, 3 and 5 of the affidavit in reply sworn by Mr. Denis Kakonge on the 25th February 2011.
He further submitted that after the expiry of the ten days, the respondent applied for and obtained judgment under Order 36 rule 3(2) of the CPR. That judgment was obtained on 11th January 2011 and subsequently, a decree was issued on the 1st February 2011.
He contended that the only remedy open to the applicant, if any, is to apply to set aside the judgment and decree but not to file the present application for leave to appear and defend. He prayed that the application should fail with costs on the basis of his preliminary objection.
Counsel for the applicant on his part, opposed the preliminary objection on the ground that it was misconceived. He confirmed that the applicant was served with summons on the date stated by counsel for the respondent and that this application was also filed as stated. However, he noted that the applicant was mindful of the provisions of Order 51 rule 4 of the CPR which states that the time expiring between the 24th December and 15th January of the following year, both days inclusive, are not to be reckoned in the computation of time appointed or allowed by the rules for the filing of any pleading or the doing of any act.
He submitted that under Order 36 rule 3(2) of the CPR a defendant is permitted within the period fixed by the summons to file an application for leave to defend. That the period fixed in the summons is ten days and in light of Order 51 rule 4, this application was filed within five days, that is, from 20th-23rd December 2010, two days, and from 15th -17th January 2011, three days, thus making it within time.
Counsel submitted that entry of judgment and issuing of the decree were done contrary to the law. He then pointed out that it is now trite law that an illegality once brought to the attention of court cannot be condoned. He later supplied the famous case of Makula International v.His Eminence Cardinal Nsubuga, Civil Appeal No. 4 of 1981 to buttress this point.
In addition and without prejudice, counsel for the applicant submitted that Order 36 rule 11 gives this court power and jurisdiction to set aside a decree for any other good cause. He acknowledged that usually court has to be moved by an application but in the face of an illegality court can exercise its discretion without being moved in that manner. He pointed out with concern that he only became aware of the judgment and decree that morning when he was served with an affidavit in reply to the application and therefore could not have filed an application to set aside the decree as stipulated under Order 36 rule 11 of the CPR.
He prayed that the objection be over-ruled and the judgment that was entered contrary to the law and the decree extracted there from be set aside so that the application for leave to appear and defend is heard.
Counsel for the respondent in rejoinder, submitted that the most important interpretation of Order 51 rule 4 is the phrase. ”time appointed or allowed by these rules”. He contended that the ten days fixed in the summons is not time appointed or allowed by the rules but rather it is the practice of the court in summary suits so that it is handled expeditiously. He submitted that in light of the above interpretation, Order 51 rule 4 is not applicable in the computation of time in this case.
He further submitted that even if counsel for the applicant’s submission were correct, he still needed to file an application to set aside the judgment and decree as required by Order 36 rule 11 of the CPR. On the issue of illegality, counsel submitted that it must be proved to court formally by an application setting out the grounds.
Finally, commenting on late service, counsel for the respondent observed that he only became aware of this application when he was pursuing taxation of costs the week before this application came up for hearing. That he then rushed and prepared an affidavit in reply which was filed on Friday 25th February 2011 and attempts were made to serve the applicant’s counsel that same day but since he was out of chambers his staff declined to receive service.
Counsel concluded by reiterating his earlier prayer that this application be dismissed with costs.
At the conclusion of both counsels’ submissions, I requested them to supply the only authority referred to in the submission and any other that would support their respective arguments to assist me determine the issues.
Counsel for the applicant later sent through the Registrar, two authorities. One was an extract from Odunga’s Digest of Civil Case Law where he highlighted the case of Republic vs Registration of Accounts Board Ex partes Mohammed AG Rosool Nakuru High Court MCA No. 180 of 2004 which dealt with a provision similar to Order 51 rule 4 of the CPR. The second one was the famous case of Makula International v. Eminence Cardinal Nsubuga (Supra) on the point of illegality.
Counsel for the respondent supplied the case of Konoweeka Architecture Painters &Builder Ltd v. Daniel Lincorin Mukasa  HCB 222 to support his argument that the proper application in this case should have been for setting aside the default judgment. He also referred to the case of Makula International (Supra) where the Court of Appeal in interpreting Order 47 rule 4(now Order 51 rule4) held that the rule applies only to “time appointed or allowed” by the Civil Procedure Rules.
The Preliminary Objection raised by Counsel for the respondent and the response by counsel for the applicant, raise the following three issues for determination by this court.
Whether this application for leave to appear and defend the summary suit which was filed on 17th January 2011 was out of time.
2. Whether the entry of judgment for the plaintiffs/respondent and issuing of the decree was done contrary to the law and;
3. If so, whether the decree obtained in default can be set aside by court on the ground of illegality without being formally moved by an application to that effects as provided under Order 36 rule 11.
On the first issue, Order 51 rule 4 relied upon by counsel for the applicant in his submission that this applicant was filed in time clearly provides that the period stated therein should not be reckoned in the computation of time appointed or allowed by the rules. However, I am perturbed by counsel for the respondent’s argument that the ten days prescribed in the summons are neither prescribed nor allowed by the rules.
In dealing with this argument, I looked at Order 36 rule 3(1) and (2) of the CPR which provides that:
“Upon the filing of an endorsed plaint and an affidavit as is provided in rule 2 of this order, the Court shall cause to be served upon the defendant a summons in Form 4 of Appendix A of these Rules, or in such other form as may be prescribed, and the defendant shall not appear and defend the suit except upon applying for and obtaining leave from the court”. (Emphasis added).
(2) “In default of the application by the defendant or by any of the defendants (if more than one) within the period fixed by the summons served upon him or her…” (Emphasis added).
The Relevant extract from Form 4 of Appendix A is as follows:
“Summons in Summary Suit on Plaint
(Order XXXVI, rule 3)
Whereas………………………..has instituted a suit against you under rule 2 of Order XXXVI of the Civil procedure Rules for……………………………………………………………
You are required within ten days from the service of this summons to apply for leave from the court to appear and defend this suit.
Should you fail within the ten days to apply for the leave, the plaintiff will be entitled to obtained a decree for the amount of the right claimed in the plaint together with the sum………………………………for costs.
Judges” (Emphasis added)
While I agree with the contention of counsel for the respondent that the time provided for under Order 51 rule 4 must be appointed or allowed by the rules, I do not agree with his argument that the ten days prescribed in the summons in summary suit on plaint is the practice of the court in summary suits so that it is handled expeditiously.
It is my firmly considered opinion, having previously served as Secretary Rules Committee for over seven years that Appendices to the rules are made by the Committee as part and parcel of the Rules and are meant to be read together with the Rules. I believe that is why the rules under which the forms are made are cited therein. For example, as noted in Form 4 above (Order XXXVI, rule 3) is written immediately below the heading of the form ”Summons in Summary Suit on Plaint” to indicate that it is made under that order and rule
I also took trouble to look up the dictionary meaning of the word” appendix” though it may appear quite elementary and obvious.
Black’s Law Dictionary 7th Edition, defined appendix as “A supplementary document attached to the end of writing” The adjective, “Supplemental according to Black’s Law Dictionary means “supplying something additional/adding what is lacking”.
Simply going by this definition, Form 4 in Appendix A adds what is lacking in rule 3(1) of Order 36 of the CPR and therefore that rule must be read together with it to be complete.
Consequently, for all intents and purposes the time prescribed in Form 4, is time appointed or allowed by the Rules to which Order 51 rule 4 applies. With due respect, I believe counsel for the respondent was just trying to split hairs with his interpretation of this rule because he was taken unaware by the response of counsel for the applicant.
The authority of Makula International (Supra) that counsel relied upon to support his argument is distinguishable from this case. That case clearly dealt with the time set by the Advocates Act for filing an appeal as opposed to the Civil Procedure Rules. The court therefore rightly held that since the time set for filing the appeal was not appointed or allowed by the Civil Procedure Rules but by the Advocates Act, Order 47 rule 4(the current Order 51 rule 4) did not apply.
From the above conclusion, it follows that in the computation of the time for filing of this application the period between the 24th day of December 2010 and 15th day of January 2011, both days inclusive should not be reckoned.
Since it is not in dispute that summons were served on the applicant on the 20th day of December 2010, there were four days before 24th December 2010 (inclusive of the day when service was effected as per the summons in summary suit on plaint) and the balance of six days would run from 16th January 2011 and expire on the 21the January 2011.
On when time started running, I looked at what is stated in the summons (Form 4) itself and I was also fortified by the case of Robert Byaruhanga vs. Rukungiri District Administration Mbarara HCCS No.407 of 1989 where Mukanza J (as he then was), held that the thirty days within which to appeal ran from 19th November 1992, when judgment of the taxing officer was delivered) to 18th December instant.
I agree with counsel for the applicant that this application which was filed on 17th January 2011 was within time. This therefore disposes off the first issue which is answered in the negative.
On the second issue, that is, whether the entry of judgment for the plaintiff/ respondent and issuing of the decree was done contrary to the law, I have already stated in this ruling that in view of Order 51 rule 4 of the CPR, the time for filing of the application for leave to appear and defend was meant to expire on the 21st January 2011.
This means that the judgment entered in default on the 11th January 2011 and the decree issued on the 1st February, 2011 were done without taking into account the provisions of Order 51 rule 4 and as such the decree was obtained before the expiry of the ten days prescribed in the summons provided for under Order 36 rule 3(1) of the CPR. In fact the default anticipated under Order 36 rule 3 (2) that would entitle the plaintiff to a decree had not yet occurred so the judgment was entered prematurely.
In conclusion on this issue, I agree with counsel for the applicant that the entry of the judgment and the issuing of the decree were done contrary to the law, specifically , order 36 rule 3(1) and (2) and order 51 rule 4 of the CPR as already alluded to in this ruling.
On the last issue as to whether the decree obtained in default can be set aside by court on the ground of illegality under Order 36 rule 11 without being formally moved by an application to that effect, counsel for the applicant argued that entry of judgment and issuing of the decree was an illegality.
He acknowledged that where judgment is entered under order 36 rules 3(2) of the CPR, in a normal situation, formal application would be filed to have it set aside under order 36 rule 11 of the CPR. He however pointed out that this judgment was entered illegally and therefore should be set aside once it is brought to the attention of court. He argued that in any case he did not know about the judgment and decree until the morning this application came up for hearing when he was served with the affidavit in reply.
Counsel for the applicant highlighted the relevant holding of the court on illegality in the Maluka International case (Supra) to the effect that, “a court of law cannot sanction that which is illegal…. Illegality once brought to the attention of court overrides all questions of pleadings, including any admission made thereon….the court is enjoined by section 101 of the Civil Procedure Act, in the exercise of its inherent powers to prevent abuse of its process, it is an abuse of Court process to make an order that is contrary to law” . (Emphasis added).
Counsel for the respondent on the other hand argued that the only remedy open to the applicant, if any, is to apply to set aside the judgment and decree but not to file the present application for leave to appear and defend. He relied on the case of Konoweeka Architecture Painters &Builders Ltd (Supra) to support his argument.
I agree with the submission of counsel for the respondent that where a default judgment has been entered and a decree obtained the appropriate remedy would be to apply to set it aside under order 36 rules 11 of the CPR. The law is quite clear and there are many authorities to that effect including the case of Konoweeka Architecture Painters &Builders Ltd (Supra) supplied by counsel.
However, the circumstance of this case is quite different as indicated in my finding on the first issue. Court registry contributed to the confusion/mess. I curiously observed the mechanical way in which the Registrar handled this file without addressing her mind to the rules. Interestingly, the same Registrar who entered judgment on the 11th January 2011 also mechanically endorsed this application that was filed on 17th January 2011, with the words, “Given & sealed this 2nd day of Feb, 2011” and signed the same. I appreciate that the work can sometimes be overwhelming but as the saying goes, “a stitch in time saves nine”. I believe that if she had scanned through the file she would have realized that she had already entered a default judgment and she would not have endorsed and fixed this application.
Matters were also not helped by counsel for the respondent who himself confessed that he served the affidavit in reply on counsel for the applicant in court shortly before this application was called for hearing. Counsel for the applicant in my view rightly complained that he had not known that a default judgment had been entered and a decree issued until that morning when he came prepared to argue the application. Therefore he could not have filed an application to set aside the decree which he was not aware of.
Be that as it may, the preliminary objection has been raised and counsel for the applicant has submitted that the decree be set aside on the basis of an illegality that has been brought to court’s attention.
Counsel for the respondent contended that an illegality must be proved to court formally by an application setting out the grounds. He seems to suggest that what was raised by counsel for the applicant is not enough to prove illegality. He needs to file another application and argue it separately and the same court would have to sit and listen to the same arguments that have already been presented in this preliminary objection.
I do not agree with this argument that is based on the pre-1995 thinking. Justice should not be delayed as court is bogged down by many applications in the name of following procedure. I am convinced that counsel for the applicant has proved that the default judgment was entered and the decree issued contrary to the law. I believe anything done contrary to the law can only be described as illegal and in that context I agree with counsel for the applicant.
I rule that given the facts before this court, it does not need to sit and wait for a formal application to either prove illegality or to set aside the judgment and decree for the sake of following procedure. That would be contrary to the letter and spirit of Article 126(2) (e) of the Constitution. Setting aside the decree in this case on the ground of illegality would not in any way prejudice or cause injustice to the respondent. On the other hand not setting it aside at this point would mean filing other applications leading to multiplicity of legal proceedings with the attendant time wastage and cost to the parties as well as an abuse of court process.
This court has inherent power under section 98 of the Civil Procedure Act to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
Section 33 of the Judicature Act also gives this court wide discretion to grant all such remedies as any of the parties are entitle to so as to resolve matters in controversy between the parties and avoid multiplicity of legal proceedings concerning any of those matters.
I am persuaded by the ruling of Hon. Justice G.Kiryabwire in Venture Communications Ltd v Vertex Prudential Commerce Inc. (2002-2004) UCLR 484 to the effect that; “by virtue of sections 33 of the Judicature Act and 98 of the Civil Procedure Act, the court has inherent power to grant any prayers sought if no prejudice would be occasioned to the parties”.
He further ruled that, “Article 126(2)(e) of the 1995 Constitution provides that substantive justice shall be administered without undue regard to technicalities . The application rested on judicial discretion and in substance no real harm or prejudice was occasioned by the procedure used to bring the application to court”.
I am also fortified by the observations made by Hon. Lady Justice C.K Byamugisha, (as she then was), in the case of Eugenia Genovera Roussos v. Gullam Hussein Habib Virani & Another, HCCS No. 360 of 1982 that;
“Rules of procedure are designed to give effect to the rights of the parties. Once the parties are brought to Court in a manner which has not occasioned injustice to any of the parties, then any irregularity which is not of a fundamental nature should not vitiate the proceedings”.
In the final result, I overrule the preliminary objection raised by counsel for the respondent and order that;
The default judgment entered on the 11th January 2011 and the decree issued on the 1st February 2011 in HCCS No. 451 of 2010 be and is hereby set aside.
The application for leave to appear and defend HCCS No.451 of 2010 filed on the 17th February 2011 shall proceed for hearing.
Costs shall be in the cause.
I so order.
Ruling delivered in open court in the presence of:
Mr. Didas Nkurunziza for the applicant.
2. Mr.Mathias Nalyanya for the respondent.
3. Ms. Rose Emeru Court Clerk.